During my first Supreme Court argument, Justice O'Connor asked me: "Is that the best statutory argument you've got? Because if it is, I think you should move along to your constitutional argument." I moved along.
Sometimes the disparaged argument, if not the best, is at least the most important. That's true in Siegelman's case because the argument -- that the evidence does not support his convictions of bribery, conspiracy, and mail fraud -- if accepted would nullify those convictions and end his prosecution.
The appellate advocate, ever hopeful that the other judges on the panel will be more agreeable, might hope to engage them with a snappy, "If it's not my best argument it's still an argument that has great merit and this is why" followed by a two sentence summation of the argument. This means: "If it's not my best argument it's the only one that gets my client completely off the hook so it's the one I want to talk about." Judges know this.
In rare cases, the advocate will make it through the two sentence summation and another judge will ask a question that leads the advocate more deeply into the preferred argument. In most cases, the other judges defer to their disagreeable colleague as he or she seizes control and redirects the argument.
[W]hen ... Heldman tried to bring up his main argument — that prosecutors failed to prove there was an explicit agreement, or a quid pro quo, between Mr. Siegelman and Mr. Scrushy — he was cut off by the chief judge, J. L. Edmondson. ...
At the opening of the hearing, Judge Edmondson quickly steered Mr. Heldman toward the lesser element in Mr. Siegelman’s conviction, what government prosecutors contend was the covering up of a “corrupt payment” of $9,200 from a supporter through a series of “sham check transactions.” The government said this was obstruction of justice; Mr. Siegelman’s lawyers claim it never occurred.
Siegelman might be able to take some comfort from this:
One of the judges, James C. Hill, seemed to find it interesting that the only evidence for bribery was an ambiguous conversation between Mr. Siegelman and his former aide, Nick Bailey, about Mr. Scrushy’s contribution.
Mr. Bailey testified that he said, “What in the world is he going to want for that?” referring to the first part of Mr. Scrushy’s $500,000 contribution. Mr. Siegelman is said to have replied, “the CON board,” referring to the state Certificate of Need board, which approves hospital projects.
“That may be his best argument,” said Judge Hill, referring to Mr. Siegelman.
Another Siegelman lawyer, Vince Kilborn, said the comment indicated that the judges were struggling to decide whether there was enough circumstantial evidence to convict Mr. Siegelman on a possible quid pro quo.
Siegelman's appeal raises a number of interesting issues, including the claim that increasing his sentence "based on out-of-court statements on matters of grave concern" violated his First Amendment rights. Convincing the court of the government's failure to present solid evidence of a bribe would be Siegelman's home run. It can't be comforting to know that a panel member spoke dismissively of that argument.
